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A Dangerous Playground 

Eureka settles kiln case for $400K, looks to limit ongoing liability

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If the city of Eureka didn't have enough to worry about at the Devil's Playground behind the Bayshore Mall, a recent jury verdict and settlement underscore that the graffiti-covered concrete structure is one massive liability concern.

The city recently settled a civil suit brought in 2012, agreeing to pay out $400,000 to a local woman who stepped into a hole and fell at the Devil's Playground, the large remnants of a lumber kiln that sit on the property behind the Bayshore Mall. In February, a jury ruled that the city knew its property was in dangerous condition but failed to take any steps to protect the public.

The case stems from July 19, 2011, when Kathleen Anderson was taking a couple of new-to-town homeless people onto the property in an effort to show them a safe place to camp for the night. While walking through one of the kiln's old loading docks — semi-enclosed concrete bays littered with large holes in the ground — Anderson tripped on a piece of protruding rebar and got her foot stuck in one of the holes, which sent her falling forward, crashing down on the cement, according to her attorney, Patrik Greigo. Anderson broke her shoulder and hit her head in the fall.

Local attorney Nancy Delaney, who represented the city at trial, seemed a bit flummoxed by the verdict.

"We initially viewed it as a case where Ms. Anderson — while her injuries were unfortunate — was walking around in an area that, given due diligence to her health, she shouldn't have been, trying to help a couple of individuals find a place to camp illegally," Delaney said, referring to Anderson as a "self-styled" homeless advocate. "To me, it was disappointing that jurors looked at that and concluded that somebody that cared about their own safety would be walking around out there."

The thing is, Griego said, if the city had been able to show jurors that it had even posted a warning sign on the property, they likely would have ruled against his client. But there was no evidence that warnings had ever been posted, Griego said, adding that the city also seemed to make matters worse for itself by denying in court that it knew that people frequented the graffiti-covered structure that's surrounded by one of the city's largest illegal homeless encampments. It probably looked bad to the jury, Griego said, when former Eureka Police Chief Murl Harpham, an officer on the force and local homeless advocate John Shelter all testified that they frequently saw people on, in and around the structure, doing everything from sleeping and painting to bird watching and just hanging out.

"I do think that really hurt them," Griego said.

Interestingly, Griego said jurors in the case initially deadlocked when it came to the question of whether there was shared liability in the case, with eight jurors feeling the city was 100-percent liable and four believing Anderson shared at least part of the blame. Fearing the case would end in a mistrial, Griego said he actually ended up arguing to the eight jurors on his client's side that she did, in fact, share some fault. "We maintained she was partially at fault — you don't fall into a hole unless you've done something wrong," Griego said, adding that the jury ultimately decided the city was 70-percent liable, with Anderson carrying the rest of the blame.

The case then moved to the damages phase, and Griego entered mediated settlement talks with the Redwood Empire Municipal Insurance Fund (REMIF), which essentially acts as the city's insurance carrier. Delaney said Anderson had initially sought damages in excess of $1 million, but agreed to settle for $400,000, all of which will be paid by REMIF. (Though none of the settlement will come out of the city's general fund, it may impact its future insurance costs.)

If $400,000 sounds like a lot, Griego said it really isn't when considering Anderson's injuries, which necessitated shoulder-replacement surgery and have permanently left her with limited use of her right arm.

The Devil's Playground is on one of a number of parcels behind the mall that were gifted to the city through various nonprofits about 20 years ago and include a network of trails to the north. The situation is complex because there's a railroad right of way running through the property, which is also subject to an open space easement from the Redwood Region Audubon Society, so the city is prohibited from fully blocking public access.

Eureka City Manager Greg Sparks said the city currently has a grant application pending that would provide funds to tear down the Devil's Playground structures and use the concrete as a base to construct walking trails in the area. Sparks said he expects to learn the fate of the application this summer but, in the meantime, the structure poses ongoing liability concerns, so he's asking staff to look into posting warning signs to the public. While there's been a litany of city activity in the Devil's Playground area in recent months to deal with the entrenched homeless camps there, Sparks said those efforts are entirely unrelated to Anderson's settlement.

Griego said there's a certain irony to the case, noting that the Devil's Playground is a classic example of an attractive nuisance — a dangerous property that by nature invites people to use it, much like a run-down, abandoned building that draws vagrants and crime. "The city would try to impose fines with any private property, but this is their building that's the biggest attractive nuisance in town," he said.

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Thadeus Greenson

Thadeus Greenson is the news editor of the North Coast Journal.

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